Owners in our condo have been subject to inadequate management including poor maintenance.

Q: Owners in our condo have been subject to inadequate management including poor maintenance. The directors maintain that it is not their job to oversee the management company and that we don’t understand the responsibilities of the board. Are the directors correct?

A: The Condominium Act specifies that the board of directors manages the affairs of the corporation. The object of the corporation is to manage the property and it has a duty to control, manage and administer the common elements and assets of the corporation.

The term “management company” is somewhat of a misnomer. “Management assistance company” is more accurate. The management company’s role is to advise the board and to carry out the board’s instructions. The board is not entitled to delegate its authority to the manager.

It is the board’s responsibility to ensure that the management company carries out its obligations under the management contract.

Q: One of the residential suites in our highrise condo houses a business. The unit owner does not live in the unit and is often away for months at a time leaving the business to be operated by as many as four employees. Advertising for the business sets out the address and unit number. Is there anything the board can do?

A: Declarations of residential condominiums almost always provide that units are to be used as single-family dwellings and for no other purpose thereby prohibiting business use. The Condominium Act requires a disagreement between an owner and a condominium corporation as to a provision of the declaration, bylaws or rules to be submitted to mediation. The board should require mediation if the unit owner refuses to end the improper use of the unit.

Mediation is not binding. The mediator acts as a conciliator in order to assist the parties in resolving their disagreement. If the parties cannot agree on a mediator within 60 days of a request for mediation, or if the mediator determines that the parties are unable to resolve their disagreement, the matter proceeds to arbitration. The arbitrator will render a binding decision. If the parties do not agree upon an arbitrator, the appointment must be made by application to a judge.

Section 134 of the Condominium Act prohibits a board from making a court application for a compliance order in regard to a disagreement with an owner in regard to the declaration, bylaws or rules if the mediation and arbitration remedies are available. While the requirement for mediation depends on the existence of a disagreement, the courts have indicated that “disagreement” must be broadly interpreted. It is likely that a judge will rule that even if the unit owner does not deny the existence of the business and does not contest the validity of the declaration provision, there is a disagreement and a section 134 court application is not available.

The corporation’s lawyer might write to the unit owner advising that mediation is required, advising of the corporation’s choice of mediator and requesting the owner’s agreement or the provision of the name or names of mediators satisfactory to the owner.

Q: A question in a recent column referred to a condominium charging $113 for a status certificate. Doesn’t the act limit the charge to $100 inclusive of taxes?

A: Yes. That maximum charge is stipulated in regulations under the Condominium Act.

Send questions to gerry@gerryhyman.com or fax to his attention at 416-925-8492. Letter volume prevents individual replies. Lawyer Gerry Hyman is an expert in condominium law.

More on thestar.com

We value respectful and thoughtful discussion. Readers are encouraged to flag comments that fail to meet the standards outlined in our
Community Code of Conduct.
For further information, including our legal guidelines, please see our full website
Terms and Conditions.